New Delhi: A high court’s opinion in matters of judicial appointments in the subordinate judiciary is not a mere formality, but has a binding effect on the governor, as per the constitutional scheme, the Supreme Court has observed in a judgment related to the appointment/promotion of judicial officers in Haryana.
In the same case, a bench led by Chief Justice D.Y. Chandrachud Monday also reproached the Haryana government for referring to the Centre its dispute with the Punjab and Haryana High Court on the promotion of trial court judges.
The state and the Punjab and Haryana HC had locked horns over the supersession of 13 civil judges to the post of district judges, after which the government approached the Union Ministry of Law and Justice for its opinion.
Based on an opinion favouring the state, the Haryana government then declined to notify the list of promoted judges that was approved by the HC.
In its judgment, the SC said the state government had travelled beyond the remit of the HC consultation by referring the matter to the Union government. Any issue between the HC and state should have been ironed out in the course of the consultative process within the two entities, it added.
Defining the constitutional position on the appointment of district judges, the top court emphasised the state government was bound to consult only the HC in the manner. There were Supreme Court judgments that shed more clarity on this consultative procedure that has to be adopted during such appointments, the bench pointed out in its judgment.
The Supreme Court verdict was delivered on an appeal against the Punjab and Haryana HC’s decision in December 2023, directing the state to take positive action on the HC’s recommendation to promote civil judges. The appeal was filed by an unsuccessful candidate who could not make it to the merit list of judges cleared for promotion.
The HC also upheld the criteria fixed for the promotion of civil judges through an administrative exercise. The recommendation made to the state on promotions was under the administrative powers of the HC.
The petitioner’s argument in SC was premised on the fact that the HC could not have prescribed separate requirements for the three different modes of recruitment for the same post of a district judge.
While 25 percent of the posts are filled with direct entrants who are advocates, selected after they clear an exam, the second and third modes are for in-service candidates. Civil judges promoted based on merit-cum-seniority occupy 65 percent of the post and the remaining 10 percent is by promotion “strictly on the basis of merit”, through a limited competitive examination for civil judges.
Judges who may not be senior in hierarchy can take the exams in the third mode of recruitment for a district judge’s post.
According to the petitioner, the HC’s administrative order fixing the selection criterion for in-house candidates was discriminatory. It was pointed out that the requirement for promotion in the 65 percent quota was to obtain 50 percent as a condition of eligibility in the suitability test and in the viva voce separately.
But there was no such requirement to secure the individual minimum cut-off in the two different tests for in-service candidates who sought promotion to a district judge’s post through the limited competitive examination.
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‘Appointment conditioned by consultation with HC’
During the hearing of the petition, the top court was also apprised about the state’s step to seek an opinion from the Centre. It was done when the HC refused to pay heed to the state’s objection to the final list of 13 civil judges who were cleared for promotion. This list was forwarded to the state on 23 February.
A week later, the state Chief Secretary wrote to the registrar (judicial), HC, seeking a “justification/clarification” in regard to the list. It noted that the list did not include certain judicial officers from the 2007, 2009 and 2010 batches, despite being senior to those chosen for promotion. Through the letter, the HC was called to clarify the criteria of merit and suitability test.
The Supreme Court was told about the HC’s response that asserted its control and supervision over fresh appointments and promotions concerning the subordinate judiciary. The HC letter also stated that since the recommendation has been approved by it on the administrative side, the same was binding on the state under the Constitution.
Solicitor General Tushar Mehta urged that the state was justified in rejecting the HC’s recommendation, contending a collaborative exercise must be followed by the two organs of the state — judiciary and executive — in judicial appointments. This was in tune with the principles incorporated in various Articles of the Constitution that pertain to appointments in subordinate judiciary, he said.
Mehta questioned the “element of subjectivity and arbitrariness”, which, in his view, was implicit in the condition under which minimum marks were designated for the interview process. This, he said, could preclude a candidate who may have scored high marks in the suitability test, but failed to meet the cut-off in the viva voce.
Mehta also contended that before fixing the criteria for selection, the HC “ought to have consulted the state” on this account. The state, he said, was not informed by the HC of the change in the criteria.
The SC judgment rejected the state’s stand and said the Constitution expects the governor to engage in constructive constitutional dialogue with the HC before appointing persons to the post of district judges and that the HC’s opinion will be binding.
Under the Constitution, the appointment of a judicial officer by the Governor “is conditioned by consultation with the HC”, and the “object of this consultation is the HC is expected to know better than the Governor the suitability of a person belonging either to the Judicial Service or to the Bar for appointment as a District Judge,” the court said.
The apex court dwelled on the modalities as well as the procedure for recruitment and concluded that each of the three channels devised for a district judge’s appointment were distinct, based on reasonable classification, having a nexus to the object and purpose sought to be achieved. Hence, candidates taking three different routes to the same post must be tested differently.
As for the rules that prescribe different criteria for assessing the in-service judicial officers, eligible for promotion, the court felt that while one is based on merit-cum-seniority, the other is based strictly on merit de hors seniority.
“We must be mindful of the fact that the interview in such cases is not being held at the very threshold of the service, while making recruitments at the junior-most level. Rather, the interview is being held to fill up a senior position in the district judiciary, that of an additional district and sessions judge. Such officers, based on their prior experience, must be expected to demonstrate a proficiency in judicial work borne from their long years of service,” the court said, underlining the need to hold an interview.
(Edited by Tikli Basu)
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